Bredin v. Neal

The opinion of the Court was delivered by Kennedy, J. The principles laid down by this court in the Cases, Frants v. Brown, 17 Serg. & Rawle, 287, and Frantz v. Brown 1 Penn. Rep. 257, rule and affirm the judgment of the court below in the case before the court. In the cases cited, which were actions of debt upon bonds at the suit of an assignee it was held to be a good defence, that the obligor, before he knew of the assignment and before the bonds became payable, had become bound as surety for the obligee in sums exceeding the amount of the bonds and had been compelled to pay them. The legacy in the present case* which was coming to Philip Weaver in right of his wife, and which he assigned to the plaintiff in error, was charged upon the land of the testator, which after his death was taken in execution and sold for the payment of his debts and for a debt of Weaver the assignor for which the testator was bound as his surety. This debt as well as the proper debts of the testator were also all liens Upon the land, and to be paid out of the monej^s arising from the sale Of it before the legacy. The debt of Weaver for which the testator was surety, was paid out of the same fund upon which the legacy was charged, and took up considerably more of this fund than the legacy which was coming to Weaver, and had been assigned by him to the plaintiff in error. Now nothing can be more clear, than that Weaver cannot have his debt paid for him out of the land and his legacy too. He could not properly claim both. To entitle himself to be paid the legacy out of the land it was incumbent upon him to discharge it of his debt. Thus he failed to do, and the debt has been paid out of the moneys arising from the sale, and he stands indebted to the estate nearly two hundred dollars beyond the amount of the legacy. This plaintiff in error can be in no better situation than Weaver himself. He took the assignment of the legacy subject to every equity on the part of the testator’s estate, and of those interested in it. It was not in the power of Weaver to assign a right or benefit to the plaintiff in error, which he had no colour of claim to himself. If Weaver or the plaintiff in error had brought suit for this legacy, as early as possible, and prosecuted it to judgment, the only judgment that [194] could have been given would have been to have the legacy levied out of the land* Suppose then a sale of the land had been made to satisfy the legacy, the debt of Weaver, for which the testator5 had bound himself, was a lien upon the land prior in date to the legacy, and must have been paid first, and in justice, if Weaver had any interest or claim in the land, as the debt was his, and not that of the testator, that interest ought first to be applied to the payment of the debt; and the debt being considerably more than the amount of the legacy, which was his interest in the land, Would have absorbed the whole of it; so that upon no principle of law, equity or justice, could he claim any portion of the money arising from the sale of the land. Independent of our statute of defalcation, I consider the debt of Weaver in equity, as a lien upon the interest of Weaver in the land, that is, the legacy; that it was pledged for the payment of the debt so far as it went, because the legacy could only come out of the land; it was as it were, so much of the land, and the debt was a lien upon the land; and has been paid out of it. . Judgment affirmed.